51 F.4th 290
8th Cir.2022Background:
- In 2012 Keith Larry knowingly exhibited a knife in an angry or threatening manner in front of his wife and was convicted under Mo. Rev. Stat. § 571.030.1(4) (unlawful use of a weapon — exhibiting).
- In 2021 Larry pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- The district court applied the Sentencing Guidelines § 2K2.1(a)(4)(A) and treated Larry’s Missouri exhibiting conviction as a "crime of violence" under the Guidelines’ force clause, increasing his base offense level, relying on Eighth Circuit precedent in Pulliam.
- Larry appealed, arguing Pulliam is no longer good law after the Supreme Court’s decision in Borden v. United States.
- The Eighth Circuit considered whether Borden’s holding (that the ACCA force clause excludes crimes that can be committed recklessly) undermined Pulliam’s conclusion that the Missouri statute is a force-clause offense.
- The court concluded Missouri’s statute requires knowledge (not mere recklessness), Borden did not disturb Pulliam, and affirmed the district court’s Guidelines determination.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mo. Rev. Stat. § 571.030.1(4) is a "crime of violence" under the Guidelines' force clause | Larry: Borden shows force clause requires targeting another and excludes this offense | Gov./court: Missouri statute requires knowledge and therefore fits the force-clause as interpreted in Pulliam | Court: Affirmed — statute qualifies as a crime of violence under Pulliam |
| Whether Borden overruled Pulliam by narrowing force clause to exclude offenses with mens rea greater than recklessness | Larry: Borden’s plurality requires the force be directed at another, undermining Pulliam | Gov./court: Borden only held recklessness is excluded; offenses requiring knowledge or intent remain included | Court: Borden excludes only reckless offenses; Pulliam remains binding; knowledge-based Missouri offense is covered |
Key Cases Cited
- United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009) (held Missouri exhibiting statute qualified under the ACCA force clause)
- Borden v. United States, 141 S. Ct. 1817 (2021) (held ACCA force clause categorically excludes offenses that can be committed recklessly)
- United States v. Hudson, 851 F.3d 807 (8th Cir. 2017) (applied Pulliam to conclude same offense qualifies under the Guidelines)
- Voisine v. United States, 579 U.S. 686 (2016) (discussed the meaning of "use of physical force")
- United States v. Matthews, 25 F.4th 601 (8th Cir. 2022) (explained Borden’s effect in the Eighth Circuit)
- Boaz v. United States, 884 F.3d 808 (8th Cir. 2018) (treated ACCA and Guidelines force clauses interchangeably)